NOTE: This is an archive copy of the file http://law.gsu.edu/wedmundson/Syllabi/Coase.htm as of 8/12/2010
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Torts
Handout The "COASE
THEOREM" Nobel laureate
Ronald Coase is Professor Emeritus of Law and
Economics at the University of Chicago. He is interested in the
"efficiency" of tort rules, i.e., in the rules' tendency to bring
about an "efficient" outcome, defined as one in which the net sum
of social wealth (a proxy for social happiness, but more easily measured) is
maximized. Recognizing that safety has costs, Coase
and his followers think of an efficient rule as one that minimizes the sum of
accident costs and prevention costs, because such a rule will, given other
assumptions, subtract the least from social wealth. Note that
"efficiency" in this sense (called "Pareto" efficiency
after the economist Vilfredo Pareto) does not
require that costs be allocated justly between people, as we will see.
Justice is a separate ideal, from the economists' perspective. Some
economists (not all) have argued that justice is a confused, contestable
idea, and that society would be better off if tort rules were fashioned solely
to advance efficiency. To illustrate Coase's idea, consider the facts in the LeRoy Fibre case.
Make the following additional assumptions about the investments the parties
would have to have made to avoid the loss suffered there, using the Hand formula notation:
The
cheapest, and therefore the "efficient" solution would be a swath.
If LeRoy Fibre's
contributory negligence is not an issue, and LeRoy
thus has a right to recover damages, will an inefficient result occur, on the
present assumptions? Not, according to Coase, if LeRoy Fibre and the RR can bargain costlessly.
Rather than pay for the fire losses, a rational RR will offer to cut a swath
for LeRoy or pay LeRoy to
do so itself. The swath will
get cut and the expensive smokescreen will not be built. But this is exactly
what we would expect to happen if the LeRoy Fibres case had come out the other way. If LeRoy's failure to cut the swath would bar it from
recovery against the RR, we would expect LeRoy to
build the swath itself. Assuming that the two parties can deal with each
other costlessly, the "efficient" result
is reach no matter which legal rule is adopted.
Hence, Coase Theorem: If there are zero transaction costs, the efficient outcome will occur
regardless of legal entitlement. If the property owners and the RR can deal costlessly, it does not matter FROM AN EFFICIENCY
STANDPOINT who has the legal "right." If we believe
that the administrative costs of allowing LeRoy to
sue are a net loss to society, shouldn't we bar LeRoy's
suit, and let the losses lie where they fall, confident that the efficient
result will be reached anyway? Before drawing a firm conclusion, we should
ask, have all the possible effects been included in our Hand calculation? What if there were 5 property owners, including
LeRoy?
Now
it appears that the efficient solution is smokescreen. If the property owners
and the RR can deal costlessly, does it matter FROM
AN EFFICIENCY STANDPOINT who has the "right"? Answer: Again,
No, by the Coase Theorem. If there are zero
transaction costs, the efficient outcome will occur regardless of legal
entitlement. If the RR has the relevant legal "right," LeRoy Fibre and the other
property owners will get together and build a smokescreen for the RR rather
than suffer damages or cut swaths. If, on the other hand, LeRoy
Fibre and the other property owners have a right to
recover in tort, the RR will build a smokescreen rather than pay damages or
for swaths. Either way, the smokescreen gets built, and that's the efficient
outcome. What are
transaction costs? From LeRoy Fibre's
viewpoint, these would include the time and trouble of finding out who their
neighbors are, getting together with them to discuss the spark problem,
agreeing on a negotiation strategy and getting together with the RR to strike
a bargain. In the "real" world, transaction costs are never zero,
and are frequently too great to allow a cooperative solution. To illustrate:
Assume LeRoy Fibres and the other
property owners incur transaction costs of $25/each (time lost,
transportation, &c). Each property
owner faces:
Result:
Inefficient overinvestment in swath-cutting, unless
the RR can be held liable for losses caused by sparks. Where does this leave
us? With a... REVISED COASE THEOREM: If there are
positive transaction costs, the efficient outcome MAY NOT be reachable under
every choice of legal entitlement. Where this is so, THE PREFERRED LEGAL RULE
IS THE ONE THAT MINIMIZES THE EFFECTS OF TRANSACTION COSTS, including both
the costs themselves and their effects i.e. inefficient choices. In our present
example, the Revised Coase Theorem would argue for
a rule allowing LeRoy Fibre
a right to recover, because that minimizes effect of transaction costs. The
smokescreen is the efficient answer to the problem, but transaction costs
make it impractical for the property owners to organize this solution. What is the
significance of the revised Coase Theorem? For our
purposes, it is very limited. Rarely will a court have the data it needs to
determine what an "optimal" or "efficient" level of
safety is, and rarely will it know what the transaction costs are and how
they have impeded an efficient result in the marketplace. Nonetheless, we
will notice a number of judicial opinions in which the language of
"cheaper" or "better cost avoider" is used. This language
usually reflects an effort to make use of Coase's
insights.
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